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NAVY | DRB | 1999_Navy | ND99-01231
Original file (ND99-01231.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-ADAN, USN
Docket No. ND99-01231

Applicant’s Request
The application for discharge review, received 990920, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a personal appearance hearing discharge review. The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision


A personal appearance hearing was conducted in Washington, D.C. on 000607. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned there was no impropriety or inequity in the characterization of the applicant’s service, at the time of discharge. However, the applicant successfully demonstrated his remorse for his misconduct, has made significant improvements to his life style and is now a person of good character. The result of the Board’s deliberation was 4 votes to upgrade this discharge to under Honorable conditions (General) and 1 vote for upgrade to Honorable. The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/ Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. To upgrade the character of my discharge to Honorable for the period of March 23, 1998 through July 21, 1989 in order to entitle me to VA benefits for my heart condition.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Draft Record of Board Proceedings (7pgs)
Copy of written presentation for pending NJP (2pgs)
Copy of Statement from CW0 W2 USN E___ G____
Copies of Character Reference Letter (3)
Copy of Letter from AE1 P____
Copy of NJP Letter from Air Operations Officer CDR H____
Copy of Letter from Chief C____
Copy of Reference Letter from Pastor.
Copies of Employment Reference Letters (2)
Copy of Letter from Cheraw Medical Specialties

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        800922 - 820322  HON
                  USN                       761016 - 800921  HON
                  USN                       721016 - 761015  HON
         Inactive: USNR (DEP)     721003 - 721015  COG

 Period of Service Under Review :
Date of Enlistment: 820323               Date of Discharge: 890721

 Length of Service (years, months, days):

         Active: 07 03 29
         Inactive: None

 Age at Entry: 27                          Years Contracted: 6 (16 months extension)

 Education Level: 12                        AFQT: 43

 Highest Rate: AD1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.86 (10)   Behavior: 3.82 (10)               OTA: 3.78

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR(3), NEM, NUC, Battle “E”, GC(3), NDSM, MUC(3), OSSR

Days of Unauthorized Absence: None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

820323:  Reenlisted onboard PATRON EIGHT for 6 years.
880322:  Extended enlistment for 16 months for sufficient obligated service for orders.

881004:  NAVDRUGLAB JACKSONVILLE, FL urinalysis report indicates applicant tested positive for THC.

881028:  NAVDRUGLAB JACKSONVILLE, FL urinalysis report indicates applicant tested positive for THC.
890201:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
Award: Extra duty for 45 days, reduction to E-5. Appealed.
890307:  Appeal of NJP denied.

 890309:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse evidenced by your service record and your urinalysis test on 880920.
890321:          Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.
890420:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under Other Than Honorable conditions.

890629:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use). Commanding officer’s comments: [(verbatim), if appropriate]:

890707:  CNMPC directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use).
910509:  NDRB documentary record review Docket Number ND91-00645 conducted. Determination: discharge proper and equitable; relief not warranted.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 890721 under Other Than Honorable conditions for misconduct due to Drug abuse (Use) (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D), at the time of discharge. During the Personal Appearance Hearing, the applicant successfully demonstrated he is now a person of good character, leading a respectable life as a productive member of society. However, the Board also acknowledges that drug abuse is a serious violation of the UCMJ. A violation, specifically briefed to every member of the armed forces, that will not be tolerated. The applicant did not provide sufficient documentation of his community service, of being drug/alcohol free, or any other post-service accomplishment, which would warrant upgrading his discharge to Honorable. Additionally, the applicant was a senior Petty Officer, in a position of trust and influence over younger Petty Officers and he showed total disregard for Navy regulations and the position entrusted to him by the Navy. The negative influence of his misconduct, on the junior personnel he encountered, can not be ignored. Therefore, after reviewing the applicant’s service record and considering his post-service accomplishments, it is the Board’s determination that the applicant is deserving of relief but is not deserving of an upgrade of his discharge to Honorable. His discharge shall change to under Honorable conditions (General) and the reason shall remain the same. Relief granted.

In the applicant’s issue 1, the Board determined this issue is without merit. The applicant states that the evidence of record suggests that his counsel’s letter of deficiency concerning potential violations of his due process rights may not have been considered by BUPERS (NMPC-83) before he was discharged on 890721. The Board recognized that the letter of deficiency submitted by the applicant’s counsel contained issues that were previously addressed during the applicant’s Administrative Separation Board. The Board also recognizes that several phone conversations between the JAG and NMPC (83) occurred after the applicant’s Admin Separation Board. Although the contents of those conversations is unknown, the Board assumes regularity on the issue of whether NMPC (83) was aware or considered the letter of deficiency. Additionally, the NDRB is under no obligation to conduct a second Admin Separation Board but is assembled to determine if there were violations in the propriety and/or equity of the discharge process. The NDRB did review this case for errors in propriety and equity and determined there were no errors in the discharge process. Therefore, based on this issue, relief is denied.

In the applicant’s issue 2, the Board determined, this issue warrants partial relief based on post-service conduct, as stated in the first paragraph of Part III of this document. Relief granted.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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